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  • #16

    This is a case were the parents could not decide on the amount of time.

    I think the optimum words that you need to apply are "Where a spouse exercises a right of access to".

    in the above, the judge had to pick appart the dad's schedule to determine both how much time he physically had and how much time he would have "a right of access".

    In this case, the judge concluded that the parent who would be responsible for the child if sick would be deemed the right of access parent. And who the school or child care provider would call, is considered the parent with the right of access, so you may be able to claim that you meet the 40% threshold.

    In all these cases the non-custodial parent had the higher income. You have this on your side as this is not the case for you, so you have two things on your side.


    • #17
      That's the thing... I make about $4000/mo, and if I were to pay her what she is asking, I would be paying almost $2000/mo in child support. My other two children live 90Km away from me, and the only way I can ever see them is if they come to stay with me on weekends. I can't live in Ottawa, and have a bedroom for my boys for under $1000/mo, plus I need a car for my access rights, I have to pay for my own diapers, wipes, extra food, laundry, etc.

      This is a complete nightmare for me.


      • #18
        Oh.. btw, that 1000/mo that I'm paying in rent includes everything. I got a good deal on this place considering the heating costs.


        • #19
          These are the issues that can be represented in an undue hardship claim as well, I have read cases where an individual had a higher cost of living to facilitate the access, and the courts saw this as valid to ensure the quality of the assess. You can’t expect a parent to have a one room apt. when they have three kids coming to visit.
          You have to have adequate accommodations and with that comes the increased costs, like hydro, heating etc.

          A judge wouldn’t order you to pay beyond your means, nor will they order you to pay beyond her needs, specifically since “she” earns a greater income. In any case the judge will take into account your first family but you MUST clearly explain that situation and all costs associated to that including the distance and travel costs. Take this away from your income less what she wants, and it would certainly cause undue hardship.
          Note: In family Law I have noticed that no one makes assumptions and no one will say, logically this makes sense. If you want them to see your perspective, you MUST clearly define all variables, they will not assume anything. For example, they will not rationally understand that increased housing means increased utilities, that’s an assumption. Nor will they interject the associated travel and accommodation costs with your access to your other children; you need to point this out. Explain every variable concisely and completely.


          • #20
            Wow... that is really good advice. Thank you. I would not have seen that the courts would not assume certain things...

  , if I didn't have three children, I could get a smaller apartment; wouldn't need as much for fuel; less for food; diapers, etc.

            Ok. That's great. Thank you. I'm going to work on this.


            • #21
              Courts will assume to their benefit, or the benefit of the child(ren) in question but NEVER to your benefit.
              My husband had a hard time trying to get reduced CS since he had a second family to support, we learned the hard way to point everything out. His second family did not diminish his responsibility to his child of the first marriage, but she too made more then he did and wanted more money. We pointed out the increased costs to maintain a home for all three children, allow a room for the child of the first marriage for visits, (ex wanted child to have her own room) and we all know a four bedroom home is expensive and equilly expensive to maintain, we had to clarify the differances in a 3 and 4 bedroom home, and all associated costs to this.

              The courts made all kinds of assumptions for the ex, but not the non-custodial parent, for that we finally realized, any assumptions in our favour would never happen, we became quite meticulous in making sure we verbally pointed everything out.


              • #22
                This case IS for my first child. So are you saying that the Court won't consider that I'm having to pay support and access to two children living 90km away from my second marriage?


                • #23
                  Your first obligation I understand was your first family of two children, yet having that responsibility does not diminish your responsibility to your second family.

                  The courts will take into account your first family, but you have to make them "completely" aware of that issue and all associated financial obligations you have with them. Or they may rule as if you have a single child to support.


                  • #24
                    Actually, it's just the opposite. My first family (family of 1) is asking me for more money, and I need the courts to consider that I have a second family of 2.


                    • #25
                      It would apply with the same basics, you'd provide the details on the costs associated to access to the other two children and to maintain a decent home for quality access.

                      Take your gross income (since this is how the CS tables work) subtract all your deductions, taxes, CPP, etc. to get your net.

                      Less both CS, payments that you are presently making.
                      Less your living expenses and travel and access costs.
                      If need be, itemize the costs associated to both families, I'm quite sure a court will weigh all the costs you bear for access and CS and determine your means relative to her need.
                      If the courts see this the same way that I am, your obligation to family #1 may actually decrease, specifically if they determine that you meet to 40% threshold and she is at a higher advantage financially.

                      This whole issue of family #1 asking for an increase in CS really throws me for a loop since she makes more and has a higher standard of living according to you.

                      One note with respect to the math behind the child support guidelines is that there are many assumptions.
                      1) The formula assumes that the paying parent has the higher income
                      2) The formula assumes that the paying parent has no financial costs associated to the children. IE clothing, food, shelter, medical, dental etc. and that the non-custodial parent has only “single” person costs
                      3) Primary purpose is to “equalize” the standard of living for the child(ren) relative to the incomes of their parents, not increase the standard of living for the receiving parent

                      The flaws in the actual CS tables are many; pointing them out very briefly may help your explanations of costs. Remember the courts will not make assumptions that benefit the paying parent. If you politely and briefly reiterate the reasons for the CS guidelines and how the ex’s request goes against the basic fundamentals of the reasoning for the implementation of the tables, this may be to your advantage.


                      • #26

                        A good read


                        • #27
                          Thank you so much for your ongoing support and advice. I truly appreciate what you've done here. It has really helped me! Honestly. This was a great resource. I'll let you know how it goes.


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